Citation Nr: 21073613 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-42 832 DATE: December 9, 2021 ORDER Entitlement to veteran readiness and employment (VR&E) benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code, is denied. FINDINGS OF FACT 1. The Veteran currently meets the threshold service-connected disability requirement for a program of vocational rehabilitation. 2. The Veteran has overcome any impairment of employment to which his service-connected disabilities have substantially contributed, and he does not currently have an employment handicap for VR&E purposes. CONCLUSION OF LAW The criteria for entitlement to VR&E benefits pursuant to Chapter 31 have not been met. 38 U.S.C. §§ 3100, 3101, 3102; 38 C.F.R. §§ 21.40, 21.50, 21.51, 21.52. REASONS AND BASES FOR FINDINGS AND CONCLUSION The served on active duty in the United States Army from July 1988 to March 1996, from May 2004 to November 2004, and from July 2010 to July 2013. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2014 Department of Veterans Affairs (VA) administrative decision which denied the Veteran's claim for VR&E benefits. When the Veteran filed his substantive appeal to the Board (VA Form 9), he requested the opportunity to testify at a hearing before the Board. Subsequently, a Board hearing was scheduled to be held in May 2019. However, that hearing was postponed and then rescheduled to be held in November 2021. In October 2021, the Veteran indicated that he wished to cancel his Board hearing. See October 24, 2021 VA 27-0820 Report of General Information. The Board thus deems the Veteran's request for a Board hearing withdrawn. The case is now ready for appellate review. Entitlement to VR&E benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code. The Veteran seeks entitlement to VR&E benefits under the provisions of 38 U.S.C. Chapter 31, Title 38 of the United States Code. Specifically, he asserts in his April 2015 notice of disagreement (NOD) that his service-connected disabilities, especially his irritable bowel syndrome, make it extremely difficult to maintain office-based employment and that developing computer networking and cyber security skills through the VR&E program will allow him the opportunity to work from home, while maintaining suitable employment and managing the impact of his disabilities. The purpose of training and rehabilitation benefits provided in Chapter 31 is to enable Veterans with service-connected disabilities to achieve maximum independence in daily living and, to the maximum extent feasible, become employable and to obtain and maintain suitable employment. 38 U.S.C. § 3100. Generally, a Veteran is eligible for a program of vocational rehabilitation if he has a service-connected disability that is rated 20-percent disabling or more and is determined by VA to need rehabilitation because of an employment handicap. 38 U.S.C. § 3.102; 38 C.F.R. § 21.40. An employment handicap will be found to exist when the individual has a vocational impairment, the individual has not overcome the effects of the impairment of employability through employment in an occupation consistent with his or her abilities, aptitudes, and interests, and his service-connected disabilities have contributed in substantial part to the overall vocational impairment. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. In this case at hand, the Veteran is service connected for the following disabilities: Obstructive Sleep Apnea (OSA), rated 50 percent disabling; Irritable Bowel Syndrome (IBS), rated 30 percent disabling; Left Knee Degenerative Joint Disease, rated 10 percent disabling; Right Shoulder Labral Tear, rated 10 percent disabling; Tinnitus, rated 10 percent disabling; Right Knee Osteoarthritis, rated 10 percent disabling; Bilateral Hearing Loss, rated 0 percent disabling; Rhinitis, rated 0 percent disabling; and Residual Scars, status post right shoulder and bilateral knee surgeries. The Veteran's service-connected disabilities combine to no less than an 80 percent evaluation since July 11, 2013. He therefore meets the threshold disability rating requirement for consideration of a program of vocational rehabilitation. However, to meet the requirements for a program of vocational rehabilitation, he must also be determined by VA to need rehabilitation because of an employment handicap. 38 U.S.C. § 3102; 38 C.F.R. § 21.40. An employment handicap will be found to exist when the individual has a vocational impairment, the individual has not overcome the effects of the impairment of employability through employment in an occupation consistent with his or her abilities, aptitudes, and interests, and his service-connected disabilities have contributed in substantial part to the overall vocational impairment. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. The Board finds that the Veteran does not meet this second requirement because he does not have an employment handicap for VA vocational rehabilitation purposes. Background The Veteran applied for VR&E benefits in June 2014. He subsequently was afforded an in-depth evaluation with a Vocational Rehabilitation Counselor (VRC) to determine whether he had an employment handicap for VA purposes. During the evaluation, the Veteran reported that he completed his Bachelor of Arts (B.A.) degree in History in 1988 before going on active duty. He reported that he served on active duty as a Helicopter pilot/safety officer from 1988 to 1996 and that he continued to serve as a reservist in the same position following discharge from active duty. He reported that he served again on active duty from May 2004 to November 2004 and then again as International Programs Deputy Product Director within the United States Army from July 2010 to July 2013. He reported that his position involved coordinating program management, managing sales support, and fielding helicopters for foreign customers. Regarding his employment history, the Veteran reported that after completing his initial active duty (1988-1996), he obtained employment as a production manager with International Paper Company in 1996. He reported that his duties were to manage daily operations of the production floor and to supervise workers. He reported that he left the position when he obtained employment as a Special Agent with the Federal Bureau of Investigation (FBI) in May 1997. He reported that his duties were to investigate violations of federal law within the jurisdiction of the FBI. The Veteran reported that he left that position when he obtained employment with Target Corporation as an Investigation Team Leader in 2004. He reported that his duties were to manage a team to investigate theft and fraud. He reported that during this time, he obtained a Master's degree in Business Administration (M.B.A.) from American International University. The Veteran reported that he left employment with Target Corporation when his position was eliminated in September 2013. The Veteran reported that he obtained employment as a Private Investigator with TLM Security Consultants LLC in September 2013 and that his duties included conducting investigations and surveillance, providing personal security, and performing background checks. He reported that he was employed in that position at the time of his evaluation with the VRC. The Veteran asserted that his IBS presented impairment to conducting investigations and surveillance due to his work often requiring him to stay stationary for long periods of time and not being able to frequently use the bathroom. Following a thorough interview of the Veteran, the VRC concluded that, although the Veteran's position as a Private Investigator may not be suitable due to the nature of his investigations and surveillance often requiring him to remain stationary for long periods of time, the Veteran does present with adequate transferable skills, management experience, and education to be considered marketable for suitable employment. In a June 19, 2014 decision letter, the VRC denied the Veteran's claim for VR&E benefits to pursue additional education and training. The VRC noted that the Veteran's service-connected disabilities resulted in vocational impairments towards lifting heavy objects, standing for long periods, and sitting for long periods. Nevertheless, the VRC concluded the Veteran has overcome barriers to employment through previous education and current employment, which the VRC determined did not aggravate the Veteran's service-connected disabilities. The VRC indicated that the Veteran has the education, experience, and skills to obtain and maintain suitable employment. In April 2015, the Veteran submitted a notice of disagreement (NOD) with the VRC's June 2014 administrative decision. In particular, he noted that he had obtained another position in December 2014 as a government contractor and that he now worked in an office setting. He indicated that he had been experiencing flare-ups in his IBS symptoms two to three times per week and that he was having to take frequent and numerous trips to the bathroom during the workday. The Veteran asserted that, because of his medication condition, he did not feel that could continue working in his current position. In August 2015, a VR&E Officer (VREO) issued a statement of the case (SOC) that continued to deny the Veterans' request for VR&E benefits. Based on a review of the claims file, the VREO found that that the Veteran had transferrable skills from his service in the military and that his transferrable management skills contributed significantly to his employability in the civilian job market. The VREO also noted that the Veteran had developed management and supervisory experience as an Investigations Team Leader for Target Corporation and that his MBA qualified him jobs in various areas such as management, administration, marketing, and sales. The VREO indicated that the Veteran was qualified for many jobs in the local job market and that, while his IBS impaired his ability to sit and stand for long periods of time, he could be reasonably accommodated for this condition. The VREO concluded that the Veteran was not in need of VR&E services at that time. The current appeal ensued. Analysis The Board has considered all of the Veteran's statements and assertions, as well as all of the evidence of record, and finds that the Veteran does not have an employment handicap as defined by the applicable regulation. 38 U.S.C. § 3102; 38 C.F.R. § 21.51. As discussed above, an employment handicap does not exist where the individual has overcome the impairment of employment by having employment in an occupation consistent with his abilities, aptitudes, and interests. Here, there simply is no evidence of periods of unemployment or employment not consistent with the Veteran's abilities or aptitudes. The Veteran himself has not asserted that his employment is unsuitable or incompatible with his own abilities, aptitude, or interests. Furthermore, since the Veteran filed his NOD in April 2015, he has not presented any additional argument or evidence in support of his claim demonstrating that he has lost his employment as a government contractor or that he can no longer perform the duties and responsibilities of that position. It is significant to note that the Veteran's service-connected disabilities have not increased in severity since he filed for VR&E benefits in 2014. The fact remains that the Veteran, with his education, transferable skills, and past work experience, has successfully obtained and maintained employment for many years. If the Veteran's employment circumstances have changed over the last eight years, he has not provided any indication of such changes to VA. Moreover, the Board notes that the Veteran cancelled his Board hearing that was scheduled to be held in November 2021. It is possible that the Veteran's testimony would have provided additional support for his assertions that he has a current employment handicap. In any event, the record reflects that the Veteran wants additional training and/or benefits to develop computer networking and cyber security skills so that he can work from home. In that regard, he believes that working from home is a viable alternative to avoid the embarrassment and loss of productivity that he would experience if he continued his employment. While there is evidence in the record that his service-connected IBS results in frequent or numerous bathroom breaks during the workday and prevents him from standing or sitting for prolonged periods of time, the Veteran has not demonstrated that he made reasonable attempts to obtain a reasonable accommodation under the Americans with Disabilities Act (ADA). It is possible that such an accomodation would have allowed him to work from home while maintaining his current employment. Likewise, he has not demonstrated through his own statements or the submission of objective medical evidence that he does not have the transferrable skills, experience, and education needed to obtain and maintain suitable employment consistent with his interests, aptitudes, and abilities. The Board is not making a finding as the credibility of the Veteran's assertions of his service-connected disability's interference with his employment. Indeed, he has been assigned a disability rating for purposes of compensating him for such impairment. See 38 C.F.R. §§ 3.321(a), 4.1. However, there is no evidence of record which demonstrates that the disability is so severe that it results in an employment handicap for VR&E purposes at this time. For the reasons discussed above, the Board finds that the statutory requirements for entitlement to Chapter 31 VR&E benefits have not been met. The Veteran does not have an employment handicap for VR&E purposes and is therefore not in need of rehabilitation. The Board agrees with the VRC and VREO that the most appropriate pathway forward for the Veteran is to seek a reasonable accommodation at work. If such an accommodation is not granted, then the Veteran is encouraged to reapply for VR&E benefits (including employment services) and to be reassessed by a VRC. As a final matter, because an employment handicap is a threshold requirement of having a serious employment handicap, the Board finds that the Veteran also does not have a serious employment handicap. 38 C.F.R. § 21.52(a). The Board has considered the benefit of the doubt doctrine but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence of record preponderates against the claim, and the Board concludes that the Veteran is not entitled to VR&E benefits under Chapter 31. The claim on appeal is denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.